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State v. Malone3/28/1991
Counsel for appellant filed this appeal in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and has asked this court to search the record for fundamental error. See A.R.S. § 13-4035; State v. Powell, 5 Ariz. App. 51, 423 P.2d 127 (1967). The appellant has been given an opportunity to file a supplemental brief in propria persona, but has failed to do so.
Appellant was charged by indictment with armed robbery, a class 2 felony; kidnapping, a class 2 felony; and, aggravated assault, a class 3 felony. The state alleged that appellant had two prior felony convictions, that the crimes were dangerous and that appellant committed the offenses while on parole, work furlough or other temporary release. The state also filed allegations of prior convictions pursuant to State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).
Following a jury trial, the appellant was found guilty of armed robbery and kidnapping, both dangerous crimes. The jury also found that the state's allegation of prior felony convictions was true.
The trial court entered its judgment of guilt and sentenced appellant to two concurrent twenty-one year sentences. As aggravating factors, the trial court listed appellant's prior felony convictions and the use of a deadly weapon.
After a review of the record, the parties were ordered to provide this court with a brief addressing the following issue: Is it double punishment, or more, for the court to use the same factor of a weapon as a basis for (1) aggravating the crime of robbery; (2) an allegation of dangerousness; and (3) aggravation in sentencing?
The dissent takes the position that the use of the same weapon to establish both dangerousness and an aggravating factor constitutes double punishment. In State v. Bly, our supreme court held that it was not double punishment to consider an element of a crime for more than one purpose when determining the appropriate sentence. 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980).
In Bly, the defendant argued that he was subjected to multiple punishment for the same act because the use of a dangerous weapon increased his sentence by raising the offense from robbery to armed robbery,
by making a prison term mandatory, by using it as an aggravating circumstance to be weighed against mitigating factors, and by making parole unavailable until he serves two-thirds of his sentence. The supreme court disagreed:
Use of a dangerous weapon as an aggravating circumstance does not expose appellant to additional punishment beyond the enhanced sentence. It is only within the range provided for dangerous class 2 felonies that the trial judge may consider the aggravating and mitigating circumstances. Under § 13-604(G), the range of sentence required when a gun is present is not a decision within the discretion of the trial judge; however, under § 13-702(D)(2), the quality and circumstances of the act committed with the gun may be considered, such as, did the manner of using the gun put others in great fear or danger. The quality of the act, as aggravation, will never subject the defendant to punishment greater than that provided in the enhanced sentencing provisions and is not double punishment.
Id. at 372-73, 621 P.2d at 281-82. See also, State v. Hall, 169 Ariz. 513,
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